United States Court of Appeals for the First Circuit.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS.Herbert Abrams with whom Barry C. Klickstein and Abrams, Roberts,Klickstein & Levy were on brief for appellant.Maia Aparo Moran with whom F.J. McDonald and Law Offices of F.J.McDonald were on brief for appellee.Before Boudin, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch,Circuit Judge.BOUDIN, Circuit Judge.

In June 1997, plaintiff-appellant Samos Imex Corporation sued Nextel

Communications, Inc. in the federal district court in Massachusetts. The gist ofthe complaint was that in 1995, Nextel had constructed an antenna or"monopole," over 100 feet high, within several feet of a building leased andoccupied by Samos Imex under a lease that required Samos Imex to makerepairs to the building. Samos Imex claimed that the antenna, which itselfinvolved subsurface construction, had caused Samos Imex's building to shift,resulting in structural damage and rendering its freight elevator inoperative.

Prior to the suit being filed, John Carota, a structural engineering expert, gave

Prior to the suit being filed, John Carota, a structural engineering expert, gaveSamos Imex a report evaluating the condition of the building, recommendingrepairs, and identifying "the probable cause" of the damage to the building andthe freight elevator. The probable cause section of the report began byconcluding that "[t]he probable cause of the recent movement and racking [i.e.,shifting] [of] this three story brick building . . . can be directly attributed to thebuilding responding to the effects of constructing the monopole project." Thereport then identified various "aspects" of the antenna project that "eithersingularly or in combination could have caused the failed elevator and crackedbuilding support columns and walls."

This document, which was prepared in advance of the litigation, was the onlydisclosure of anticipated expert testimony made by Samos Imex by the time ofthe discovery deadline for plaintiff's expert testimony. Thereafter, Nextelmoved to exclude Carota's testimony and for summary judgment. It argued thatthe Carota report was not accompanied by other information required by Fed.R. Civ. P. 26(a)(2)(B), such as exhibits to be used at trial by the expert, a list ofhis publications, disclosure of compensation, and a list of other cases in whichthe expert has testified within the preceding four years. In the same motion,Nextel sought summary judgment on the separate ground that the report, evenif believed, did not establish that the antenna had more likely than not causedthe harm complained of; rather, according to Nextel, the report dwelt solely in"could haves" and "possibilities."

In August 1998, the district court heard oral argument and decided the matterfrom the bench. It rejected the request to exclude the engineering report as asanction for violation of discovery rules, but it entered summary judgment onthe ground that the report did not purport to establish that "more probably thannot" the antenna construction was the cause of the damage--the threshold ofproof that the court said was inherent in the preponderance of the evidencestandard that generally applies in civil cases.

In the hearing, counsel for Samos Imex responded to the court that Carotawould testify that when he used the phrase "the probable cause" in his report,he meant "more likely than not." The court said that it understood the proffer tomean that if Carota was called to the stand "he would answer that more likelythan not the shifting of the building which caused the elevator to bind was[caused by] the Nextel pole." However, the court said that to accept this profferas modifying the report would undermine proper case management anddiscovery rules and that the report itself remained "inadequate given therequired standard."

Samos Imex now appeals and, reviewing the grant of summary judgment de

Samos Imex now appeals and, reviewing the grant of summary judgment denovo, see Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997), we reverse.The phrase "probable cause" is used, in the narrow confines of FourthAmendment precedent, to establish a standard less demanding than "moreprobable than not." For example, arrests--made long before all proof isassembled for a trial--can be justified as based on probable cause by showing areasonable basis for belief that a suspect committed a crime; in many cases sucha basis exists without a 50 percent-plus likelihood that the suspect is guilty.See, e.g., United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999); cf. UnitedStates v. Sokolow, 490 U.S. 1, 7 (1989).

The standard is obviously higher at trial where, in a civil suit for negligence,the plaintiff must normally show both fault and causation. To establish thelatter, plaintiff must show that it is more probable than not that the injury wascaused by the action or event (or a combination of them) for which thedefendant was responsible. See, e.g., Forlano v. Hughes, 471 N.E.2d 1315,1319-20 (Mass. 1984); Bigwood v. Boston & N. St. Ry. Co., 95 N.E.2d 751,752 (Mass. 1911).1 And laymen and many judges might easily refer to such acause as "the probable cause" of an accident, meaning that it was the morelikely than not cause.

Words like "probable" and "likely" are highly elastic in common use, which iswhy they are often surrounded by other phrases ("more probable than not", "areasonable likelihood"), that sometimes lend greater precision and sometimesdo not. When a magistrate judge speaks of "probable cause" in a suppressionhearing, we assume that he means a reasonable basis sufficient to satisfy theFourth Amendment; but if a doctor testified on the stand that the probablecause of death was a heart attack, he might be expected to mean that the heartattack was more likely than not the cause of death. If the doctor meant only thata heart attack was merely one possible cause among others, it would be up tothe opposing counsel to draw this out on cross-examination.

In all events, counsel for the plaintiff made an immediate proffer that the expertwould testify that the monopole was more likely than not the cause of theinjury and that that was what he had intended by use of the phrase "probablecause" in the report. If there were any doubt, it would be easy enough toconduct a brief deposition of the witness. It is one thing to allow counsel tocontradict by proffer something the expert said in the report or to supply amanifest omission; in that event, case management and discovery concernswould be legitimate objections. But it is hard to justify dismissal of a case onsummary judgment, based on what is at worst ambiguous language, in the faceof an explicit proffer by counsel that the witness meant just what many readerswould expect the witness to have intended.

10

Admittedly, further in the Carota report he used phrases like "could havecaused" and the like, and Nextel presses this point on appeal. But the main useof these phrases, which occur in the same paragraph as the "probable cause"statement, are actually references to multiple causes all of which related to theconstruction or operation of the antenna and for all of which Nextel wouldlikely be responsible (absent some further explanation). So long as Nextel wasresponsible for all of the possible causes, it would not matter whether theprecise causal path could be identified. See, e.g., Solimene v. B. Grauel & Co.,507 N.E.2d 662, 667 & n.12 (Mass. 1987); Carey v. General Motors Corp., 387Mass. N.E.2d 583, 585-86 (Mass. 1979).

11

This is not a case in which the witness mouths the proper conclusion but thedetailed explanation in his report or proffered testimony clearly contradicts orprovides no arguable foundation for the conclusion. See, e.g., Colantuonis v.Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994). Nor does this appearto be a case in which the expert was talking generally about why buildingscollapse without reaching a conclusion as to why this specific building hadshifted; on the contrary, the pivotal sentence in the probable cause section ofthe report (quoted above) spoke of "the probable cause" of the shifting of "thisthree-story brick building."2 Nextel was free to depose Carota to clarify his"could have" references, but it was not entitled to summary judgment on thepresent state of the record.

12

Nextel asks us to affirm the district court's decision on a distinct "alternative"

ground, namely, the alleged failure of Nextel to comply with discovery rules byfurnishing required information about the expert. At one point in the transcriptthe district court appears squarely to have rejected such a claim of violation asthe basis for excluding Carota's testimony, hardly a choice comprising a patentabuse of discretion. In effect, Nextel is asking us to conclude that there was aviolation of the discovery rules and that it was of such a character as to compelthe district court to exclude the report as a sanction for this violation.

13

It is quite true that as amended, the civil procedure rules make clear thatexclusion of evidence is a standard sanction for a violation of duty of disclosureunder Rule 26(a). See Fed. R. Civ. P. 37(c); Klonoski v. Mahlab, 156 F.3d 255(1st Cir. 1998). But this is far from saying that the district court is obligated toexclude evidence based on a failure, long before trial and likely subject tocorrection without much harm to the opposing party; nor do we know whetherthere may be some "justification" for any failure to disclose. See Fed. R. Civ. P.37(c). In all events, on remand the district court is free to enforce its discoveryrules by ordering compliance, sanctions, or any other appropriate remedy.

14

We have no bias whatever against summary judgment or against opinions from

the bench, both of which are often marks of efficient management. But where abuilding incurs harm after significant nearby construction and an expert callsthe construction "the probable cause," we think that more is needed to supportsummary judgment than an easily resolved doubt as to whether the expertmeant "more probable than not." There may well be more to the story, but wecan only act on what the record discloses. Nothing precludes a renewed motionfor summary judgment if and when Carota is deposed.

15

The judgment of the district court is reversed and the matter remanded forfurther proceedings consistent with this opinion.

16

It is so ordered.

Notes:1

Massachusetts cases sometimes describe the standard as requiring the plaintiff

to show that "there was greater likelihood or probability that the harmcomplained of was due to causes for which the defendant was responsible thanfrom any other cause." Carey v. General Motors Corp., 387 N.E.2d 583, 585(Mass. 1979) (quoting McLaughlin v. Bernstein, 249 N.E.2d 17, 22 (Mass.1969)). But it is highly doubtful that this would allow liability based on a lesslikely-than-not cause merely because it is more likely than any other singlecause.

While the basis for the conclusion could certainly be explored in a depositionand may yet be vulnerable, this seems to us quite different than the situation-briefly adverted to by the district court--in which the Surgeon General speaks ofsmoking in general as the probable cause of cancer without reaching anyconclusion as to a specific death.